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Evan Collins and Felicia Collins v. State of New York

October 9, 2009

EVAN COLLINS AND FELICIA COLLINS, CLAIMANTS-APPELLANTS,
v.
STATE OF NEW YORK,
DEFENDANT-RESPONDENT.



Appeal from an order of the Court of Claims (Francis T. Collins, J.), entered July 10, 2008.

The opinion of the court was delivered by: Centra, J.:

1107

PRESENT: SCUDDER, P.J., HURLBUTT, MARTOCHE, SMITH, AND CENTRA, JJ.

OPINION AND ORDER

The order granted claimants' motion for leave to renew and, upon renewal, adhered to the prior decision denying claimants' application for permission to file a late notice of claim.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Opinion by CENTRA, J.:

I

Claimants made an application for permission to file a late notice of claim against defendant for, inter alia, unlawful imprisonment, alleging that the New York State Division of Parole (Division) improperly imposed a five-year period of postrelease supervision (PRS) upon Evan Collins (claimant) that ultimately resulted in his confinement. We conclude that the order granting claimants' motion for leave to renew and, upon renewal, adhering to the prior decision denying claimants' application should be affirmed.

II

The facts of this case are not in dispute. By judgment rendered May 26, 1999, claimant was convicted upon his plea of guilty of, inter alia, attempted criminal possession of a weapon in the third degree (Penal Law §§ 110.00, 265.02 [former (4)]) and was sentenced as a second felony offender. Although a five-year period of PRS was mandatory pursuant to section 70.45, Supreme Court (Mario J. Rossetti, A.J.) did not impose any period of PRS. Upon claimant's release from prison after serving the sentence, the Division administratively imposed a five-year period of PRS. Claimant was arrested approximately two years later and incarcerated on a parole detainer warrant. Claimant then filed a petition for a writ of habeas corpus, alleging that he was being illegally detained because he was never advised by the court, the prosecutor, or defense counsel that his sentence would include a period of PRS. Supreme Court (M. William Boller, A.J.) granted the petition to the extent of quashing the parole detainer warrant and vacating the five-year period of PRS imposed by the Division. Claimant was subsequently released from custody.

Approximately seven months later, claimants made an application in the Court of Claims for permission to file a late notice of claim against defendant based on "excusable neglect and/or for good cause." The proposed claim included causes of action for unlawful imprisonment, invasion of privacy, abuse of process, extreme emotional distress, and loss of consortium, all allegedly caused by the Division's imposition of a period of PRS. Defendant contended in opposition that, inter alia, the claim was without merit because a period of PRS was mandated. The court denied the application after considering the relevant factors and, although the court thereafter granted the motion of claimants for leave to renew their application, it adhered to its prior decision.

III

We note at the outset that the order granting the motion of claimants for leave to renew their prior application and adhering to the court's prior decision superseded the order denying the application from which claimants now appeal (see Loafin' Tree Rest. v Pardi [appeal No. 1], 162 AD2d 985). We nevertheless exercise our discretion to treat the notice of appeal as valid and deem the appeal as taken from ...


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